Fassett v. VendTech-SGI, LLC
Filing
51
ORDER AND OPINION GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, 40 . Signed on 2/6/18 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
STANFORD FASSETT,
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)
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Plaintiff,
vs.
VENDTECH-SGI, LLC,
Defendant.
Case No. 16-01221-CV-W-ODS
ORDER AND OPINION GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Pending is Defendant Vendtech-SGI, LLC’s Motion for Summary Judgment.
Doc. #40. For the following reasons, Defendant’s motion is granted in part and denied
in part.
I.
BACKGROUND1
Defendant provides security services at federal facilities pursuant to a federal
government contract. Defendant’s contract with the Federal Protective Services (“FPS”)
consists of a Statement of Work, which includes the rights and responsibilities of FPS
and Defendant, as well as the qualification and performance standards Defendant’s
employees must meet. Among other things, the Statement of Work allows FPS to direct
the suspension of any of Defendant’s employees from working under the contract for a
variety of reasons. The Statement of Work also requires Defendant to report any
adverse information concerning any of its employees to FPS, and permits Defendant to
appeal FPS’s decision to remove one of Defendant’s employees.
In June 2012, Plaintiff Stanford Fassett, who is over the age of forty and identifies
as a black male, began working for Defendant as a Protective Security Officer (“PSO”).2
1
Unless otherwise noted, the facts contained in this section were uncontroverted by the
parties or were obtained from depositions or documents submitted by the parties with
their summary judgment briefing. These facts are set forth to provide background
information for the Court’s ruling, and should not be construed as findings of fact.
Plaintiff is responsible for, among other things, checking the identification of individuals
entering the federal building to prevent unauthorized access to the building.
As a PSO, Plaintiff is required to comply with Defendant’s job requirements as
well as the requirements FPS imposes upon Defendant. 3 Plaintiff received FPS’s
Security Manual and Resources Tool (“SMART”) Book, which includes guidelines
regarding work-related conduct and prohibits sexual harassment. According to the
SMART Book, “[i]f a government employee or visitor complains to…FPS about sexual
harassment by a PSO, FPS will initiate an investigation, and it is probable that the
employer will be asked to make a determination about removing the individual(s) from
the contract until the investigation is completed.” Doc. #41-8, at 6. Defendant’s
employee handbook also sets forth a zero tolerance policy for harassment, and states
“complaints of harassment will be investigated promptly and in an impartial manner.”
Doc. #44-21, at 3. Pursuant to the collective bargaining agreement, which also governs
the terms and conditions of Plaintiff’s employment, Defendant will investigate the facts
leading to a decision by FPS to request the removal of an employee.
According to Plaintiff, on April 22, 2015, a Caucasian female government
employee entered the federal building where Plaintiff worked, walking at an abrupt
pace, preventing Plaintiff from seeing her badge. Plaintiff did not recall seeing the
employee prior to that date. Plaintiff asked the employee to see her badge; she did not
respond. He then tapped the employee’s shoulder, and asked to see her badge. The
employee turned around, and said, “don’t ever touch me.” Again, Plaintiff asked the
employee to see her badge. She showed her badge, and walked away.
Later that same day, the employee alleged Plaintiff harassed her. The employee
reported she showed her badge to the guard before going through the metal detectors.
According to the employee, the guard “smiled and touched my shoulder.” She told him,
“[d]on’t ever touch me again,” and kept walking. She reported the guard winked at her
twice earlier that week or the previous week. Plaintiff was informed of the complaint,
2
Beginning in 2010, Plaintiff worked as a PSO under a contract another entity had with
FPS. In June 2012, Defendant was awarded the contract with FPS to provide security
services. At that point, Plaintiff became employed with Defendant.
3
For purposes of summary judgment, it is uncontroverted that Plaintiff did not work for
FPS, was not a federal employee, and FPS was not a joint employer with Defendant.
2
and was told to provide a statement. His statement was provided to Defendant and
FPS. A coworker also provided a statement. Plaintiff was informed the video footage of
the event would be reviewed.
FPS was made aware of the employee’s complaint, and directed Defendant to
suspend Plaintiff from working under Defendant’s contract with FPS, pending the
outcome of FPS’s investigation into the allegation. Defendant informed Plaintiff of the
suspension without pay pending FPS’s investigation. On April 27, 2015, Plaintiff
answered additional questions about the April 22, 2015 incident. Defendant neither
asked FPS to reconsider its directive to remove Plaintiff nor appealed FPS’s directive.
While suspended from work, Plaintiff filed a charge of discrimination alleging,
among other things, his suspension was discriminatory and retaliatory. Throughout his
suspension, Plaintiff contacted Defendant on numerous occasions asking about his
suspension. He was told there was nothing he or Defendant could do because FPS
was investigating the complaint. Defendant contacted FPS when the alleged incident
occurred and again in or about October 2015, inquiring about the investigation. Plaintiff
was contacted by a federal investigator in November 2015.
On or about December 8, 2015, Defendant received a letter from FPS stating its
investigation was complete, and the results failed to provide sufficient evidence to
support the allegation of sexual harassment against Plaintiff. Plaintiff’s suspension was
lifted, and he returned to work at the same location with the same rate of pay. Plaintiff,
however, did not receive the vacation time allotment to which he believes he was
entitled based upon his seniority. Plaintiff continues to be employed by Defendant.
On August 10, 2016, Plaintiff filed suit in the Circuit Court of Jackson County,
Missouri, alleging Defendant violated the Missouri Human Rights Act (“MHRA”) by
discriminating against him on the basis of his race and age, and retaliating against him.
Doc. #1-1. Defendant removed the matter to this Court. Doc. #1. Defendant now
moves for summary judgment in its favor on all of Plaintiff’s claims.
II.
STANDARD
A moving party is entitled to summary judgment on a claim only if there is a
showing that “there is no genuine issue as to any material fact and that the moving party
3
is entitled to a judgment as a matter of law.” Williams v. City of St. Louis, 783 F.2d 114,
115 (8th Cir. 1986). “[W]hile the materiality determination rests on the substantive law,
it is the substantive law’s identification of which facts are critical and which facts are
irrelevant that governs.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Thus, “[o]nly disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.” Wierman v.
Casey’s Gen. Stores, 638 F.3d 984, 993 (8th Cir. 2011) (quotation omitted). The Court
must view the evidence in the light most favorable to the non-moving party, giving that
party the benefit of all inferences that may be reasonably drawn from the evidence.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588-89 (1986); Tyler v.
Harper, 744 F.2d 653, 655 (8th Cir. 1984). “[A] nonmovant may not rest upon mere
denials or allegations, but must instead set forth specific facts sufficient to raise a
genuine issue for trial.” Nationwide Prop. & Cas. Ins. Co. v. Faircloth, 845 F.3d 378,
382 (8th Cir. 2016) (citations omitted).
III.
DISCUSSION
A. Applicability of Amendments to the MHRA
The MHRA was amended, effective August 28, 2017. There are two
amendments to the MHRA that, if applicable, affect the Court’s consideration of the
pending motion: (1) the modification of the causation standard, and (2) the legislature’s
instruction to courts to apply a burden-shifting framework when analyzing a summary
judgment motion.
First, the causation standard was changed from “contributing factor” to
“motivating factor.” Mo. Rev. Stat. § 213.101.4 (2017) (expressly abrogating the
contributing factor standard); Mo. Rev. Stat. § 213.111.5 (2017) (stating a plaintiff bears
the burden of proving the alleged unlawful action “was made or taken because of his or
her protected classification and was the direct proximate cause of the claimed
damages.”); Mo. Rev. Stat. § 213.010(2) (2017) (defining “because” or “because of” “as
it relates to the adverse decision or action, the protected criterion was the motivating
factor”). Second, the amended MHRA requires courts to use the McDonnell Douglas
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burden-shifting framework.4 Mo. Rev. Stat. § 213.101.3 (2017) (stating “the court shall
consider the burden-shifting analysis of McDonnell Douglas…to be highly persuasive for
analysis in cases not involving direct evidence of discrimination.”); Mo. Rev. Stat. §
213.101.4 (2017) (abrogating the Missouri Supreme Court’s decision in Daugherty v.
City of Maryland Heights, 231 S.W.3d 814 (Mo. banc 2007), which abandoned the
McDonnell Douglas burden-shifting framework as applied to the MHRA).
The Court must determine whether these amendments apply retrospectively to
this matter, which was filed in November 2016. The Missouri Constitution states no law
“retrospective in its operation…can be enacted.” Mo. Const. art. I, sec. 13. “The
constitutional bar on civil laws retrospective in their operation has been a part of
Missouri law since this State adopted its first constitution in 1820.” Doe v. Phillips, 194
S.W.3d 833, 850 (Mo. banc 2006). The Missouri Supreme Court presumes “statutes
operate prospectively unless legislative intent for retrospective application is clear from
the statute’s language or by necessary and unavoidable implication.” State ex rel.
Schottel v. Harman, 208 S.W.3d 889, 892 (Mo. banc 2006) (citations omitted). A statute
will be applied retrospectively if (1) the legislature clearly expressed an intent that the
statute be applied retrospectively, or (2) the statute is procedural or remedial (not
substantive) in its operation. Dalba v. YMCA of Greater St. Louis, 69 S.W.3d 137, 140
(Mo. Ct. App. 2002) (citation omitted).
The legislature did not clearly express an intent to apply these amendments
retrospectively. Thus, the Court must examine whether the amendments are procedural
or substantive. “Substantive laws fix and declare primary rights and remedies of
individuals concerning their person or property, while remedial statutes affect only the
remedy provided, including laws that substitute a new or more appropriate remedy for
the enforcement of an existing right.” Files v. Wetterau, Inc., 998 S.W.2d 95, 97-98
(Mo. Ct. App. 1999) (citing Faulkner v. St. Luke's Hosp., 903 S.W.2d 588, 592 (Mo. Ct.
4
The McDonnell Douglas burden-shifting framework requires the plaintiff to carry the
burden of establishing discrimination or retaliation. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973). If the plaintiff meets his or her burden, the burden shifts to
the employer to articulate a legitimate, non-discriminatory or non-retaliatory reason for
its decision. Id. at 802-03. If the employer meets its burden, the burden then shifts
back to the plaintiff to show the employer’s reason was pretextual. Id. at 803-04.
5
App. 1995)); compare State ex rel. St. Louis-San Francisco Ry. Co. v. Buder, 515
S.W.2d 409, 411 (Mo. banc 1974) (precluding retrospective application of the amended
wrongful death statute, which removed the recovery limitation) with State ex rel. LeNeve
v. Moore, 408 S.W.2d 47, 49 (Mo. banc 1966) (allowing retrospective application of a
statute that permitted the filing of a tort action in the county where the action accrued,
regardless of the parties’ residences, because the statute was procedural or remedial,
and there was evidence of the legislature’s intent to apply the statute retrospectively).
The parties disagree about whether this Court must apply the McDonnell
Douglas burden-shifting framework. Defendant argues the McDonnell Douglas burdenshifting framework should be applied because the MHRA was amended to explicitly
instruct courts to follow that framework. Plaintiff argues the Court should not apply the
McDonnell Douglas burden-shifting framework in this matter because the change in the
law is substantive, and therefore, cannot be retrospectively applied.
The parties also disagree about whether Plaintiff must establish Defendant’s
alleged discriminatory intent was a contributing or motivating factor in Defendant’s
decisions related to Plaintiff’s employment. Plaintiff maintains the contributing factor
standard should be applied because the legislature’s change in the standard from
contributing factor to motivating factor is substantive. In its summary judgment motion,
Defendant analyzed Plaintiff’s claims under the contributing factor because Plaintiff’s
“claim first arose when [the contributing factor] standard was still the law.” Doc. #41, at
16 n.4. But, in its reply, Defendant argued the “motivating factor” should be applied
because the amendments clarified the legislature’s intent behind the “because of”
language in the MHRA. Doc. #48, at 32-33. Defendant argues this amendment is
procedural and should be applied retrospectively. Id. Although this Court generally
does not consider arguments raised for the first time in a reply brief, it will do so here
because the parties disagree about both amendments, and the Court’s analysis of both
amendments is the same.
A statute’s modification of the burden of proof and its requirement that courts
shift the burden of proof is substantive. See Demi v. Sheehan Pipeline Constr., 452
S.W.3d 211, 215 (Mo. Ct. App. 2014) (finding the Missouri Supreme Court’s alteration to
the burden of proof required for a worker’s compensation retaliation claim – from
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“exclusive cause” to “contributing factor” was a substantive change in the law) (citation
omitted); Lawson v. Ford Motor Co., 217 S.W.3d 345, 349-50 (Mo. Ct. App. 2007)
(finding the modification of the claimant’s burden of “substantial factor” to “prevailing
factor” to qualify as a compensable injury under the worker’s compensation law was
substantive, and therefore, could not be applied retrospectively).
The MHRA amendments have only been in effect for months, but a division of
this Court and most of the Missouri circuit courts have determined the amendments
cannot be applied retrospectively. Compare Woodruff v. Jefferson City Area Young
Men’s Christian Ass’n, No. 17-4244-WJE (W.D. Mo. Jan. 28, 2018) (finding the MHRA
amendment pertaining to individual liability is substantive and cannot be applied
retrospectively) and Stubbs v. Indep. Sch. Dist., No. 1616-CV11175 (Jackson Cty. Cir.
Ct. Jan. 11, 2018) (finding “the change to the MHRA is not retroactive”) and Chabries v.
Stephens Coll., No. 17BA-CV02997 (Boone Cty. Cir. Ct. Jan. 3, 2018) (finding the
amendment eradicating individual liability should not be applied retrospectively because
the amendment was substantive) and Ballard v. O’Reilly Auto. Stores Inc., No. 15HECC00051-01 (Bates Cty. Cir. Ct. Nov. 27, 2017) (finding “the changes in the [MHRA]
affect[] the substantive rights of the Plaintiff[,] and therefore, cannot be applied
retroactively.”) and Nicholson v. Scavuzzo’s Inc., No. 1516-CV22139 (Jackson Cty. Cir.
Ct. Sept. 21, 2017) (finding the MHRA amendments pertaining to damages will not be
applied retrospectively) with Gaylor v. Kemco Tool & Mach. Co., No. 14SL-CC00054
(St. Louis Cty. Cir. Ct. Oct. 13, 2017) (finding the motiving factor standard and business
judgment instruction apply retrospectively but the damages cap does not apply
retrospectively). The Court agrees with the vast majority of courts that have considered
this issue, and finds these two particular MHRA amendments are substantive in their
operation. Accordingly, the Court will not retrospectively apply these MHRA
amendments to Plaintiff’s claims.
B. Plaintiff’s Claims
When deciding a case under the MHRA, courts are guided by Missouri law and
federal employment discrimination case law consistent with Missouri law. Daugherty,
231 S.W.3d at 818 (citations omitted). Missouri discrimination safeguards are not
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identical to the federal safeguards. Id. at 818-19 (citation omitted); see also Wierman,
638 F.3d at 1002 (citations omitted) (finding the district court erred in applying federal
employment standards to the plaintiff’s MHRA claims). “If the wording in the MHRA is
clear and unambiguous, then federal case law which is contrary to the plain meaning of
the MHRA is not binding.” Id. (quoting Brady v. Curators of Univ. of Mo., 213 S.W.3d
101, 112 (Mo. Ct. App. 2006)). In considering a summary judgment motion in the
context of an MHRA claim, the Court “must determine whether the record shows two
plausible, but contradictory, accounts of the essential facts, and the ‘genuine issue’ in
the case is real, not merely argumentative, imaginary, or frivolous.” Daugherty, 231
S.W.3d at 820 (citation omitted); see also Carter v. CSL Plasma Inc., 63 F. Supp. 3d
1034, 1043 (W.D. Mo. 2014).
(1) Race Discrimination Claims
Plaintiff alleges Defendant discriminated against him on the basis of his race
when he was suspended without pay, Defendant failed to conduct an appropriate or
reasonable investigation into the sexual harassment allegation against him, and
Defendant did not award him the vacation time to which he believes he was entitled
based upon his seniority. Doc. #1-1, at 8-10. Defendant seeks summary judgment on
all of Plaintiff’s race discrimination claims. The Court will first consider Plaintiff’s race
claims associated with his suspension and his allegation that Defendant failed to
conduct an appropriate or reasonable investigation.
(a) Plaintiff’s Suspension and Defendant’s Alleged Failure to Investigate
To establish a prima facie case of race discrimination in the employment context,
a plaintiff must establish his race was a contributing factor in the employer’s decision.
Daugherty, 231 S.W.3d at 819-20 (citing Mo. Rev. Stat. § 213.010(5) (1998)); see also
Wierman, 638 F.3d at 1002; Mo. Approved Instruction No. 31.24 (6th ed. Supp. 2017);
McBryde v. Ritenour Sch. Dist., 207 S.W.3d 162, 170 (Mo. Ct. App. 2006)).5 A
5
Defendant contends Plaintiff must also establish he was qualified for his position, and
more specifically, he performed his job at a level that met Defendant’s legitimate
expectations. Plaintiff argues he need only show he was able to perform his job duties.
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contributing factor is “a condition that contributes a share in anything or has a part in
producing that effect.” Turner v. Kan. City Pub. Schs., 488 S.W.3d 719, 723 (Mo. Ct.
App. 2016) (quoting McBryde, 207 S.W.3d at 170) (internal quotations omitted); see
also Wierman, 638 F.3d at 1002. The contributing factor standard is less rigorous than
the motivating factor standard applied in Title VII discrimination cases. Denn, 816 F.3d
at 1033 (citing Daugherty, 231 S.W.3d at 819). A plaintiff is not required “to present
evidence of similarly situated employees…to overcome summary judgment, but this
type of evidence can give rise to a factual issue regarding whether a discriminatory
reason was a contributing factor….” Denn, 816 F.3d at 1034 (citing Holmes v. Kan. City
Mo. Bd. of Police Comm’rs, 364 S.W.3d 615, 627 (Mo. Ct. App. 2012)).
This Court has viewed the evidence presented by the parties in the light most
favorable to Plaintiff, and given Plaintiff the benefit of all reasonable inferences. The
Court finds Plaintiff has set forth sufficient evidence that could allow a jury to conclude
his race was a contributing factor in Plaintiff’s suspension and Defendant’s alleged
failure to conduct an appropriate or reasonable investigation into the allegation of sexual
harassment against Plaintiff. Accordingly, Defendant’s motion for summary judgment
on Plaintiff’s race claims related to his suspension and the failure to investigate the
sexual harassment complaint against him is denied.
Case law does not provide a definitive answer. Compare Young v. Am. Airlines, Inc.,
182 S.W.3d 647, 653 (Mo. Ct. App. 2005) (stating “the relevant analysis focuses on the
employee’s overall work record and general ability to perform [his or her] job duties, not
whether the employee violated a company rule or policy on one occasion, such as in
this case.”) and Denn, 816 F.3d at 1032 (not setting forth a requirement that the plaintiff
establish he was qualified for the position) with Marez v. Saint-Gobain Containers, Inc.,
740 F. Supp. 2d 1057, 1067-69 (E.D. Mo. 2010) (finding there was a dispute as to
whether the plaintiff was qualified to perform her job or whether she was meeting her
employer’s expectations). However, in Daugherty, the Missouri Supreme Court did not
set forth a requirement that a plaintiff meet his employer’s expectations to establish an
MHRA claim. 231 S.W.3d at 820. It stated a plaintiff must prove only his protected
classification was a contributing factor in the employer’s decision to establish an MHRA
claim. Id. Also, the Missouri jury instruction does not set forth this requirement. Mo.
Approved Instruction 38.01(A) (7th ed. Supp. 2017). In light of Daugherty, Young,
Denn, and the Missouri jury instruction, this Court will not require Plaintiff to prove he
was qualified for his position or was meeting his employer’s expectations in order to
establish a prima facie case of discrimination.
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(b) Plaintiff’s Vacation Allotment
Plaintiff’s final race discrimination claim is based upon his allegation that he was
not awarded, upon return to work after the suspension, the amount of vacation time to
which he believes he was entitled based upon his seniority. Defendant argues Plaintiff
failed to administratively exhaust this claim, entitling Defendant to summary judgment
on this claim. Before filing a lawsuit alleging violations of the MHRA, a plaintiff “must
exhaust administrative remedies by timely filing an administrative complaint….”
Alhalabi v. Mo. Dep’t of Nat. Res., 300 S.W.3d 518, 524 (Mo. Ct. App. 2009) (citations
omitted). Administrative exhaustion requires a plaintiff give notice of all discrimination
claims in the administrative complaint (or, as the case is here, the charge of
discrimination). Id. at 525. Administrative complaints are interpreted liberally, and
claims are deemed exhausted with regard to all incidents in the administrative complaint
as well as incidents reasonably related to the allegations in the administrative complaint.
Id. (citation omitted).
Plaintiff’s charge of discrimination alleges he was suspended because of his race
and age, and in retaliation for engaging in protected activity. Doc. #44-11, at 2.6
Plaintiff also alleged a “continuing action,” and stated Defendant “is continuing to take
adverse actions toward me as I have been unable to return to work or find another
similar job.” Id. Plaintiff’s charge of discrimination does not specifically allege
Defendant discriminated or retaliated against him by failing to award him the vacation
allotment to which he believes he is entitled. But this is not surprising because that
incident had not yet occurred.
There is no evidence Plaintiff further amended his charge of discrimination or
filed another charge of discrimination to include his vacation allotment claim. Thus, the
Court must determine whether that claim is reasonably related to the allegations in the
charge of discrimination. Alhalabi, 300 S.W.3d at 525. When viewing the evidence in
the light most favorable to Plaintiff and liberally construing charge of discrimination, the
Court finds Plaintiff’s vacation allotment claim is reasonably related to the allegations
6
The parties also submitted an “amended” charge of discrimination filed in October
2015. Docs. #41-14, 44-11. The parties point to no differences between the two
charges, and the Court is unable to discern any significant differences between the two
charges. In fact, the “particulars” sections in the charges appear to be identical.
10
contained in his charge. First, Plaintiff alleged the discrimination and retaliation were
continuing, and he specifically claimed Defendant was continuing to take adverse
actions against him. Second, the vacation allotment was tied directly to the time Plaintiff
worked (or, in this case, did not work). Had Plaintiff not been suspended, there would
not be a claim associated with the decreased vacation allotment. Plaintiff, in all
likelihood, would have received his full vacation allotment. Thus, the Court finds Plaintiff
administratively exhausted his race discrimination claim associated with his vacation
allotment,7 and Defendant’s motion for summary judgment based upon failure to
exhaust this claim is denied.
As with Plaintiff’s other race discrimination claims, the Court has viewed the
evidence presented by the parties in the light most favorable to Plaintiff, and given
Plaintiff the benefit of all reasonable inferences. The Court finds the record shows
plausible, but contradictory, accounts of the facts surrounding Plaintiff’s vacation
allotment. Accordingly, the Court denies Defendant’s motion for summary judgment on
Plaintiff’s discrimination claim based upon the vacation allotment he received.
(2) Age Discrimination Claims
Plaintiff alleges his age was a contributing factor in his suspension, and he lost
benefits and privileges of employment because of his age. Doc. #1-1, ¶ 37. Plaintiff’s
age discrimination claim survives summary judgment only “if there is a genuine issue of
material fact as to whether his age was a contributing factor” in Defendant’s decisions
related to his employment. Daugherty, 231 S.W.3d at 820 (internal quotation omitted).
Plaintiff argues a reasonable juror could conclude his age was a contributing
factor in Defendant’s decisions related to Plaintiff’s employment because all PSOs who
were investigated for conduct issues were over the age of forty, suggesting younger
PSOs were not subjected to the same scrutiny as older PSOs. Doc. #44, at 48. This
argument is imprecise, unsupported, and insufficient to survive summary judgment.
First, Plaintiff has not “set forth specific facts sufficient to raise a genuine issue
for trial.” Nationwide Prop. & Cas. Ins. Co., 845 F.3d at 382; Fed. R. Civ. P. 56(c); L.R.
7
Plaintiff also alleges the decreased vacation allotment was retaliatory. For the same
reasons set forth above, the Court finds Plaintiff administratively exhausted that claim.
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56.1(b)(2). Nothing in the record demonstrates Plaintiff’s age was a factor in any of
Defendant’s decisions. Second, to support his argument that PSOs over the age of
forty were treated differently than younger PSOs, Plaintiff’s refers the Court to a
thirteen-page exhibit (Doc. #44-30), which appears to list the ages of Defendant’s active
and discharged employees. But a blanket reference to an exhibit, without specifics,
does not set forth evidence of a genuine issue of fact. Plaintiff does not identify which
individuals the Court should consider. Accordingly, the Court cannot discern who these
individuals are, and whether they are similarly situated to Plaintiff. Third, Plaintiff
indicates these unidentified PSOs over the age of forty were investigated for “conduct
issues,” but Plaintiff does not specify the particular “conduct” at issue. Again, without
knowing the identity of the individuals and the underlying conduct, the Court cannot
determine whether these individuals are similarly situated to Plaintiff. Fourth, setting
aside his sweeping assumption that younger individuals were treated more favorably
than he was treated, Plaintiff does not set forth any evidence of a similarly situated
younger employee being treated more favorably than he was treated.
Plaintiff has not provided evidence of a genuine issue of material fact as to
whether his age was a contributing factor in Defendant’s decisions. Plaintiff simply
relies upon speculation and conjecture, which are not sufficient to survive summary
judgment. The Court grants Defendant’s motion for summary judgment on Plaintiff’s
age discrimination claims.
(3) Retaliation Claims
To establish a prima facie case for retaliation under the MHRA, a plaintiff must
establish (1) he complained of discrimination or another practice prohibited by the
MHRA, (2) the defendant took an adverse action against him, and (3) a causal
relationship existed between his complaint and the adverse action. Shirrell v. St.
Francis Med. Ctr., 793 F.3d 881, 886 (8th Cir. 2015) (citation omitted); Soto v. Costco
Wholesale Corp., 502 S.W.3d 38, 48 (Mo. Ct. App. 2016). A causal relationship exists
when “retaliation was a contributing factor to the adverse action.” Denn, 816 F.3d at
1036 (citation omitted).
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(a) Plaintiff’s Suspension
Although the Petition maintains Plaintiff’s suspension was retaliatory, Plaintiff
conceded, in response to Defendant’s summary judgment motion, he did not engage in
protected activity before he was suspended. Doc. #44, at 14. Additionally, Plaintiff did
not respond to Defendant’s argument that it was entitled to summary judgment on that
claim, and he did not include his suspension in the list of alleged retaliatory acts taken
by Defendant when responding to Defendant’s summary judgment motion. By failing to
respond to that argument, Plaintiff tacitly concedes that claim. See Satcher v. Univ. of
Ark. at Pine Bluff Bd. of Trs., 558 F.3d 731, 735 (8th Cir. 2009). Further, after reviewing
the record, the Court finds no genuine issue of material fact exists with regard to
Plaintiff’s claim that his suspension was retaliatory. Accordingly, Defendant’s motion for
summary judgment is granted on this particular claim.
(b) Allegedly Failing to Investigate and Vacation Allotment
In response to Defendant’s summary judgment motion, Plaintiff claims Defendant
retaliated against him by failing to investigate or take any action to curtail Plaintiff’s
lengthy suspension, and eliminating his vacation based on his seniority in 2016. Doc.
#44, at 52. Defendant argues it is entitled to summary judgment on these retaliation
claims because Plaintiff is alleging those claims for the first time.8 The Court disagrees;
both claims are contained in Plaintiff’s Petition. Doc. #1-1, ¶¶ 17, 19, 23, 45-52.
Defendant also contends these claims were not administratively exhausted. The
Court already found Plaintiff’s vacation allotment claim was administratively exhausted.
See supra, n.7. Plaintiff’s charge of discrimination specifically alleges he has openly
opposed the false accusation of harassment, and Defendant continues to take adverse
actions against him “as I have been unable to return to work.” Doc. #41-14, at 2.
Applying the standard set forth supra, section III(B)(1), which requires liberal
interpretation of charges of discrimination, the Court finds Plaintiff administratively
8
Defendant’s reply brief appears to blend arguments that (1) Plaintiff is raising these
claims for the first time, and/or (2) Plaintiff failed to administratively exhaust these
claims. As such, it is unclear if Defendant is making both arguments. Out of
abundance of caution, the Court addresses the arguments separately.
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exhausted his retaliation claim based upon Defendant’s failure to investigate or take
action to curtail Plaintiff’s suspension.
Finally, Defendant argues it is entitled to summary judgment on these two
retaliation claims because they lack merit. Viewing the evidence in the light most
favorable to Plaintiff and giving him the benefit of all reasonable inferences, the Court
finds Plaintiff has set forth sufficient evidence that could allow a jury to conclude these
actions (or inactions) by Defendant were retaliatory. Accordingly, Defendant’s motion
for summary judgment is denied with regard to Plaintiff’s retaliation claims based upon
Defendant’s alleged failure to investigate or take any action to curtail Plaintiff’s lengthy
suspension, and his vacation allotment.
(c) Challenging Plaintiff’s Claim for Unemployment Benefits
In response to Defendant’s summary judgment motion, Plaintiff also claims
Defendant retaliated against him by challenging his claim for unemployment benefits.
Doc. #44, at 52. Defendant argues Plaintiff is asserting this claim for the first time, and
he also failed to exhaust his administrative remedies with regard to this claim.
Alternatively, Defendant argues this claim is without merit.
The liberal pleading standard requires “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Erickson v. Pardus, 551 U.S. 89, 93
(2007) (per curiam) (quoting Fed. R. Civ. P. 8(a)(2)). “Specific facts are not necessary;
the statement need only ‘give the defendant fair notice of what the…claim is and the
grounds upon which it rests.’” Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007)). In the Petition, Plaintiff alleges his protected activities included “openly
oppos[ing] the false accusation of harassment,” and opposing discriminatory practices.
Doc. #1-1, ¶¶ 14, 46. Plaintiff does allege he opposed the false accusation of
harassment or opposed discriminatory practices when applying for unemployment
benefits. He does not allege Defendant retaliated against him by challenging Plaintiff’s
claim for unemployment benefits. In fact, there is no mention of application for,
opposition to, or denial of unemployment benefits in the Petition. And although he
alleges he was subjected to “retaliatory conduct in the form of lost benefits and
privileges at work,” Plaintiff does not allege lost benefits outside of work, such as
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unemployment benefits. Id., ¶ 19. While Plaintiff gave Defendant fair notice he was
bringing a claim of retaliation, Plaintiff did not set forth Defendant’s challenge to his
claim for unemployment benefits was one of the bases for the retaliation. As such,
Defendant was not given fair notice of this particular retaliation claim. For this reason
alone, this claim must be dismissed.
Even if Plaintiff sufficiently pleaded this particular retaliation claim, he failed to
administratively exhaust it. Although his claim for unemployment benefits was
challenged and decided prior to the filing of his charge of discrimination, Plaintiff did not
allege Defendant retaliated against him by challenging his claim for unemployment
benefits. Doc. #41-14, at 2. Similar to his Petition, there is no mention of application
for, opposition to, or denial of unemployment benefits in the charge of discrimination.
Id. Even when liberally interpreting the charge of discrimination, as the Court must do,
this particular retaliation claim is not reasonably related to the allegations in the charge.
For this additional reason, this claim must be dismissed.
Even if Plaintiff properly pleaded this claim and administratively exhausted this
claim, the claim fails on the merits. To satisfy the first element of a retaliation claim,
Plaintiff must engage in a protected activity in that he complained of discrimination or
another practice prohibited by the MHRA. Shirrell, 793 F.3d at 886. Plaintiff alleges he
opposed discriminatory treatment when he filed for unemployment benefits. But Plaintiff
presents no evidence establishing this purported fact. No evidence has been presented
establishing what Plaintiff told the Division of Employment Security. See Doc. #44-14,
at 9-10. As such, there is no evidence establishing Plaintiff engaged in a protected
activity when he filed a claim for unemployment benefits. Because Plaintiff cannot
satisfy this element of his claim, Defendant’s motion for summary judgment on this
claim is granted.
Finally, even if Plaintiff could establish he engaged in a protected activity when
he filed a claim for unemployment benefits by complaining about discriminatory
treatment, his claim still fails. Plaintiff does not set forth any evidence that his alleged
protected activity was a contributing factor in Defendant’s decision to challenge
Plaintiff’s claim for unemployment benefits. For this additional reason, the Court grants
Defendant’s motion for summary judgment on this retaliation claim.
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IV.
CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment is denied
with regard to all of Plaintiff’s race discrimination claims, granted with regard to all of
Plaintiff’s age discrimination claims, granted with regard to Plaintiff’s claim that his
suspension was retaliatory, denied with regard to Plaintiff’s retaliation claim based upon
Defendant’s alleged failure to investigate or take action to curtail Plaintiff’s lengthy
suspension, denied with regard to Plaintiff’s retaliation claim based upon his vacation
allotment, and granted with regard to Plaintiff’s retaliation claim based upon Defendant’s
challenge to his claim for unemployment benefits.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
DATE: February 6, 2018
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